NASER ORIC WELCOMED HOME, NEW LAWSUIT IN PROGRESS

Thousands welcome Bosnian defender of Srebrenica after release from UN tribunal; New Srebrenica Massacre Lawsuit to Follow

Naser Oric, 39, was released by the tribunal in The Hague, Netherlands, on Friday after a three-year trial (read here). Judges found him not guilty and therefore acquitted him of any direct involvement in the mistreatment of about 15 Serb captives (of which 5 died) and of responsibility for the “wanton destruction” of homes and property. But he was found guilty of failing to control and discipline men under his command.

Oric’s defence counsel Vasvija Vidovic said her team would appeal against the judgement, because at the end of the trial in April this year they had called for an acquittal on all charges. But she appeared to be pleased with the judgement, anyway.

His indictment initially included six charges. But two of them –relating to the alleged plunder of public or private property – were dropped on June 8, after the judges agreed at the end of the prosecution case that there was no evidence to support them.

“This has not been an easy case,” Judge Agius said in April this year, summarising the 18 months of tough arguments and mutual accusations exchanged between prosecution and defence, the surprising twists and turns, incongruous testimonies, inconclusive prosecution evidence and courtroom drama which marked this case from its very beginning.

Naser Oric had commanded troops defending the Bosnian enclave of Srebrenica, where a 1995 Serb assault ended with the massacre of over 8,000 men and children (boys) in a week. As a local commander, Oric was very successful in military terms. Not only did he manage to prevent Serb forces from conquering Srebrenica in the early stages of war – when Bosniaks elsewhere were losing a lot of territory – but in a short time he also doubled the territory controlled by his forces.

Several thousand people gathered at Sarajevo’s airport to greet Oric; most were survivors of Europe’s worst civilian massacre since the Holocaust. The jubilant crowds formed a convoy of cars to escort Oric to the northern city of Tuzla, where he lived since the end of the war.

Many wore T-shirts with Oric’s picture and the words: “Never forget Naser. He is a hero.”

One of the Serb commanders found responsible for the massacre, Radoslav Krstic, has already been sentenced to 40 years after a conviction on Srebrenica Genocide charges. The commander of the Bosnian Serb army, Gen. Ratko Mladic – also charged with genocide for the Srebrenica killings – is in hiding and believed to be in neighbouring Serbia.

“I am pleased he’s been released,” said one supporter, Nura Begovic of the Association of Srebrenica Women. “But I think he didn’t deserve to spend even one day in prison – he shouldn’t have gone to The Hague in the first place.”

In other news

New Suit over Srebrenica massacre

AMSTERDAM – A Netherlands-based law firm is preparing to file a suit against the Dutch government and the United Nations seeking damages for almost 8,000 Bosniaks (Bosnian Muslims) who lost relatives in the 1995 Srebrenica massacre.

“We think we have strong case,” lawyer Axel Hagedorn told Reuters. He and Marco Gerritsen head a 14-strong team from the firm Van Diepen Van der Kroef, which has spent two years preparing the suit, Hagedorn said.

Hagedorn accuses the Dutch armed forces and the United Nations of failing to protect the people in Srebrenica and of collaborating with the Bosnian Serb forces.

During the Bosnian war, Srebrenica became a supposed safe area guarded by a Dutch army unit operating under a U.N. mandate but the town was overrun by Bosnian Serb forces in July 1995.

Over 8,000 Bosniak (Bosnian Muslim) men and boys were executed in the worst mass killing in Europe since World War Two.

The lawsuit will be filed within three to four months in front of a Dutch court, Hagedorn said.

“Attempts to talk to the Dutch government about a compensation for the relatives were not answered. We see a lawsuit as the only option,” Gerritsen said.

He plans to set up a foundation for the relatives which would be funded by the Netherlands and the United Nations.

Six former Bosnian Serb officers are due to go on trial on July 14 at the U.N. war crimes tribunal in The Hague on charges of genocide related to the Srebrenica massacre.

Related:
Oric’s Two Years – By Human Rights Watch

Srebrenica Genocide Blog – Facts vs. Genocide Denial
http://srebrenica-genocide.blogspot.com

ICTY ACQUITS NASER ORIC OF THE MOST SERIOUS CHARGES

SEE NEW UPDATE:
Naser Oric was acquitted of all charges on appeal, read here.

FAIR DECISION in ORIC CASE, AT LEAST FROM THE BOSNIAK PERSPECTIVE

Naser Oric was found NOT GUILTY and therefore acquitted of any direct involvement in the mistreatment of about 15 Serb captives (of which about 5 died) and of responsibility for the “wanton destruction” of homes and property. But he was found GUILTY of failing to control and discipline men under his command.

The UN war crimes tribunal imposed a light two-year sentence on the commander of the Bosniak defenders of the Bosnian enclave of Srebrenica for failing to prevent murder and/or cruel treatment of about 15 Serb captives (about 5 of them died).

But the tribunal in The Hague ordered his immediate release since he has already been detained more than three years.

Naser Oric, 39, was acquitted of direct involvement in the murder of prisoners. He was acquitted of all charges related to the wanton destruction of Serb villages.

But the judges found he had closed his eyes to the mistreatment of captives and failed to punish their killers.

The incidents took place from December 1992 to March 1993 (before Srebrenica became “Safe Heaven”), when Serbian forces were ethnically cleansing, torturing, raping, and killing Bosniak population of Eastern Bosnia.

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“The accused was entitled to credit for the period of time he spent in custody since 10 April 2003 and the Judges therefore ordered that he be released as soon as the necessary practical arrangements have been made,” the court said in a statement.

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Many of the 52 witnesses that the prosecution called were members of the Bosnian Serb Army who participated in the seige and massacre of over 8,100 Srebrenica Bosniaks.
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Correspondents say many Bosniaks regard Mr. Oric as a hero, and believe the decision to prosecute him was made to counter complaints by Serbs that the tribunal was biased against them.
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In court, Oric listened impassively as the lengthy verdict was read out.

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Serbian media falsely claimed that over 3,000 Serbs died around Srebrenica. However, the Research & Documentation Center (which aids ICTY war crime investigations) found that number to be 9 to 10 times lower. RDC concluded:

The allegations that Serb casualties in Bratunac, between April 1992 and December 1995 amount to over three thousand is an evident falsification of facts. Perhaps the clearest illustration of gross exaggeration is that of Kravica, a Serb village near Bratunac attacked by the Bosnian Army on the morning of Orthodox Christmas, January 7, 1993 . The allegations that the attack resulted in hundreds of civilian victims have been shown to be false. Insight into the original documentation of the Army of Republika Srpska (VRS) clearly shows that in fact military victims highly outnumber the civilian ones. The document entitled “Warpath of the Bratunac brigade”, puts the military victims at 35 killed and 36 wounded; the number of civilian victims of the attack is eleven. [Read Full Report]

In fact, the International Court found that only 16 Serb were mistreated in the Naser Oric Case. Contrast that with over 8,000 slaughtered Bosniaks in Srebrenica, hundreds of thousands of Bosniaks who were ethnically cleansed from the area of Eastern Bosnia, and another tens of thousands missing in the area of Eastern Bosnia [RDC].

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In determining the sentence the Trial Chamber gave pivotal consideration to the general circumstances prevailing in Srebrenica and those particular to the accused and to the crimes committed. The judges described conditions in Srebrenica at the times of the crimes in 1992 and 1993 as abysmal. They noted that militarily superior Serb forces encircled the town and that there was an unmanageable influx of refugees there, as well as a critical shortage of food and the breakdown of law and order. The judges also noted that it was in these circumstances that Oric, then aged 25, was elected commander of a poorly trained volunteer force that lacked effective links with government forces in Sarajevo. His authority, they assessed, was scorned by some other Bosnian Muslim leaders and his situation became worse as the Bosnian Serb forces increased the momentum of their siege.

The judges found that there is no other case before the Tribunal in which the accused was found guilty of having failed to prevent murder and cruel treatment of prisoners in such a limited manner and in such abysmal personal and circumstantial conditions as in this case. Consequently, the sentence imposed reflects this uniquely limited criminal responsibility.

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The Tribunal’s Trial Chamber II convicted Oric because he had reason to know about acts of murder and cruel treatment committed at the Srebrenica Police Station and a building behind the Srebrenica municipal building where Serb prisoners were kept between 27 December 1992 and 20 March 1993, and he failed to take necessary and reasonable measures to prevent the occurrence of the crimes. The Trial Chamber acquitted the accused of a number of other alleged crimes.

The Trial Chamber, composed of Judge Carmel Agius (presiding), Judge Hans Henrik Brydensholt and Judge Albin Eser heard 80 witnesses. A total of 1639 exhibits were tendered into evidence.

Mr. Oric was found:

NOT GUILTY and therefore acquitted of:

Under Count 1: Failure to discharge his duty as a superior to take necessary and reasonable measures to prevent the occurrence of murder from 24 September 1992 to 16 October 1992 pursuant to Articles 3 and 7(3) of the Statute, and failure to discharge his duty as a superior to take necessary and reasonable measures to punish the occurrence of murder from 24 September 1992 to 16 October 1992 and from 27 December 1992 to 20 March 1993 pursuant to Articles 3 and 7(3) of the Statute.

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NOT GUILTY and therefore acquitted of:
Under Count 2: Failure to discharge his duty as a superior to take necessary and reasonable measures to prevent the occurrence of cruel treatment from 24 September 1992 to 16 October 1992 pursuant to Articles 3 and 7(3) of the Statute, and failure to discharge his duty as a superior to take necessary and reasonable measures to punish the occurrence of cruel treatment from 24 September 1992 to 16 October 1992 and from 27 December 1992 to 20 March 1993 pursuant to Articles 3 and 7(3) of the Statute.

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NOT GUILTY and therefore acquitted of:

Count 3: Failure to discharge his duty as a superior to take necessary and reasonable measures to prevent or punish the occurrence of acts of wanton destruction of cities, towns, or villages, not justified by military necessity, pursuant to Articles 3(b) and 7(3) of the Statute.

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NOT GUILTY and therefore acquitted of:
Count 5: Wanton destruction of cities, towns, or villages, not justified by military necessity, pursuant to Articles 3(b) and 7(1) of the Statute.

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GUILTY of:

Under Count 1: Failure to discharge his duty as a superior to take necessary and reasonable measures to prevent the occurrence of murder from 27 December 1992 to 20 March 1993 pursuant to Articles 3 and 7(3) of the Statute.

Under Count 2: Failure to discharge his duty as a superior to take necessary and reasonable measures to prevent the occurrence of cruel treatment from 27 December 1992 to 20 March 1993 pursuant to Articles 3 and 7(3) of the Statute.

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Read ICTY Judgement: http://www.un.org/icty/pressreal/2006/p1094-e.htm

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Related: Naser Oric Trial Ends – Fairness Questioned

You might also be interested to read lengthy (but very interesting) IWPR piece: Oric Released Following Conviction

Oric’s Two Years – By Human Rights Watch

Update: Naser Oric Welcomed Home

Srebrenica Genocide Blog – Facts vs. Genocide Denial
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GENOCIDE CASE FROM MILOSEVIC ERA

Court Still Weighing Genocide Case From Milosevic Era

By MARLISE SIMONS

THE HAGUE — Among the unfinished business left by the death of Slobodan Milosevic is the central question of whether he was guilty, as charged, of genocide in Bosnia.

But while his death brought a sudden end to his trial at the United Nations war crimes tribunal, the genocide issue may well be decided by another United Nations court based in The Hague: the International Court of Justice.

That court, also known as the World Court, has recently finished nine weeks of hearings on a case filed 13 years ago, in the middle of the Bosnian war. With Muslim [Bosniak] villages under attack and civilians driven into detention camps, Bosnia’s lawyers turned to the court, accusing Yugoslavia of violations “on all counts” of the United Nations Convention on Genocide.

The case was held back by a slow-paced institution and by repeated legal moves by Belgrade to block the lawsuit. In the meantime, Yugoslavia became Serbia and Montenegro in 2003, and in May simply Serbia.

Now, the hearings over, judges from 16 countries must give their interpretation of events from the 1992-1995 war. That is expected within the year.

The terror campaign to clear non-Serbs from large swathes of Bosnia has become commonly known as “ethnic cleansing,” but the line, if any, between ethnic cleansing and genocide has divided legal experts examining events from Bosnia to Iraq and Darfur.

The World Court suit is unique in that it is not a criminal trial of individuals — like those at the tribunals for Yugoslavia, Rwanda or Sierra Leone — but rather a civil proceeding, in which for the first time one state is suing another charging genocide.

The suit may well be the most complex in the 60-year history of the World Court, the United Nations’ highest, which usually deals with issues of sovereignty, diplomatic relations, and land or sea boundaries.

“This will give new relevance to a court that was sidelined by the new war crimes tribunals,” said Antoine Garapon, director of the Institute for Advanced Legal Studies in Paris. “It may ultimately pass a historic judgment on Milosevic and his regime, even if that was not its function.”

Should the court rule in Bosnia’s favor, the Serbian state will suffer the stigma of having committed genocide, an outcome that would implicate the entire Milosevic government.

For Serbian citizens and their fledgling economy, that could mean also being saddled with hefty war reparations. Bosnia has asked the court to award damages for the loss of life and property.

During the war, 100,000 people died, the majority of them Muslims, and entire Muslim towns and villages were destroyed, including their mosques and monuments. No figure was set.

Serbia has argued that there were local excesses of war but no genocidal campaign, that Belgrade did not control events in Bosnia and that a verdict favoring Bosnia will make reconciliation between the neighbors even more difficult.

Bosnia says the opposite, and argues it needs “recognition of Serb guilt” even more than reparations.

Even at this late stage, Serbia has raised new obstacles, challenging once more the jurisdiction of the court. It argued that during the relevant period, Yugoslavia was not a member of the United Nations and, by extension, not a party to the court. In the past, judges twice ruled the court had jurisdiction.

In the recent hearings, the opposing legal teams made ample use of documents, evidence and even witnesses from trials at the war crimes tribunal, which sits a few miles away. The tribunal found genocide at Srebrenica in 1995, when more than 7,000 Muslim men and boys were executed.

But at least one crucial cache of material has remained out of reach. The wartime records of the Supreme Defense Council, which included Yugoslavia’s military and political leaders, were handed to the tribunal after much Western pressure.

But Belgrade secured the guarantee that they be accessible only to the court’s judges and lawyers. Belgrade officials claimed national security, but some have made it no secret they wanted to keep the records out of the hands of the Bosnians suing them at the World Court.

Tribunal officials familiar with the secret archives said the minutes of the meetings revealed much about how Belgrade ran the war in Bosnia.

“Of course people may say things differently if they know they are recorded,” one official said, requesting anonymity because he lacked permission to speak to reporters. “Milosevic was also known to convey important decisions in private.” Parts of the minutes were missing, he said.

During Mr. Milosevic’s trial, prosecutors said the archives provided the best records and insights into his real power and his state of mind.

Human rights lawyers have insisted that opening the archives is necessary for Serbia to be confronted with its wartime history.

For now, Bosnia must demonstrate that Serbia not only supplied but also controlled the troops that were involved in eradicating Muslim communities — including Bosnian Serb troops and Belgrade’s own special forces and militias.

Gen. Ratko Mladic, the Bosnian Serb military commander wanted for genocide by the war crimes tribunal, traveled to Belgrade almost weekly during the war, according to testimony from NATO commanders.

Legally proving genocide requires showing intent to destroy a group, in whole or in part. Phon van den Biesen, of the Bosnian team, said that intent was evident in this case from the pattern of crimes on the ground, including the destruction of close to 1,000 mosques, so evidence from the archives would not be needed.

Lawyers following the case said defining genocide or proving it at this court might be different.

“This is not a criminal trial and the levels of proof needed are not as high,” said Richard Dicker, a director of Human Rights Watch. “In any case, it will be hugely important to see how this court interprets and rules on genocide.”

Source: http://www.nytimes.com/2006/06/18/world/europe/18hague.html

Srebrenica Genocide Blog – Facts vs. Genocide Denial
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SREBRENICA MASSACRE BUTCHERS STILL ADMIRED IN SERBIA

PEOPLE RESPONSIBLE FOR SLAUGHTER OF OVER 8,000 BOSNIAKS IN SREBRENICA STILL REGARDED AS ‘HEROES’ IN SERBIA

BELGRADE, Serbia – The general still has his admirers.

In the musty headquarters of the Center for the Investigation of War Crimes Against Serbs in Bosnia-Herzegovina, his portrait is prominently displayed on the wall behind Ljubisa Ristic’s desk. There were about 2,000 Serb civilian casualties in the war which Serbia waged against Bosnia-Herzegovina between 1992 and 1995 [source – as of Dec 15, 2005 data].

“My personal opinion is that he is a true soldier and a hero of the Serbian people,” Ristic said.

It is not clear how many other Serbs feel that way about Gen. Ratko Mladic, the wartime commander of the Bosnian Serb army and chief executor of its ethnic cleansing campaign.

“I’d say 75 percent of the Serbs see him as a war hero,” said Aleksandar Tijanic, who heads the state-run television network in Serbia. “But if you ask them if he should he go to The Hague to save the Serbs from more suffering, 75 percent would say yes.”

Mladic, who has been charged with genocide by the U.N. war crimes tribunal in The Hague, has been on the run since the collapse of Yugoslav leader Slobodan Milosevic’s regime in October 2000.

Last month, the European Union broke off talks with Belgrade aimed at preparing Serbia for EU membership after President Vojislav Kostunica’s government missed another deadline for delivering Mladic. The United States followed suit this month, canceling a $7 million aid package to the Serbian government.

Carla Del Ponte, the tribunal’s chief prosecutor, has claimed repeatedly that Mladic is in Serbia and within the reach of Belgrade authorities. She says the government simply lacks the political will to arrest him.

That appeared to be the case in February when there were feverish media reports that the general had been cornered at a hiding place near the Bosnian border.

“But instead of arresting him, they started negotiating with him,” said Bratislav Grubacic, a political analyst who publishes a widely respected newsletter.

The negotiations came to nothing. “And now they really don’t know where he is,” Grubacic said. “For this government, I think they prefer not to know.”

Vladan Batic, the former Yugoslav justice minister who ordered the extradition of Milosevic to The Hague in June 2001, agrees with Del Ponte that the present government lacks the political will to deliver Mladic.

“Kostunica was hoping that Mladic would surrender himself,” said Batic. “He knows Mladic is our ticket to Europe, but he’s afraid that if he gives up Mladic, he’ll lose a lot of votes and won’t be seen as a so-called patriot.” Batic, who heads a small opposition party and who retains good police and security contacts, believes Mladic is holed up at the Topcider military base, a large complex amid a forest outside Belgrade that has an elaborate network of tunnels.

State TV boss Tijanic, who is close to Kostunica, disputes the Topcider theory and also the suggestion that Kostunica is afraid of arresting Mladic.

“Today, Kostunica’s government is willing to send him to The Hague, but they don’t know where he is hiding,” Tijanic said.

Citing the recent arrests of about a dozen people thought to be part of Mladic’s support system, Tijanic claimed that Mladic has cut all of his contacts with the military and security forces and is hiding on his own.

The international community’s focus on Mladic has diverted attention from Radovan Karadzic, the Bosnian Serb wartime political leader, also charged with genocide and still on the run.

There are three explanations.

The first is The Hague’s experience in prosecuting genocide cases, which argues that it is much easier to obtain a conviction against military officers, who answer to a clear chain of command, than it is against their political bosses. A second explanation is that Karadzic, who is believed to be in Bosnia, has done a better job hiding himself.

The last, based on a persistent rumor echoed by nearly every diplomat and expert in the Balkans, is that at the time of the Dayton peace agreement, Karadzic cut a deal that he would completely withdraw from politics if authorities would not try too hard to find him. Little has been heard from him since.

A year ago, public opinion in Serbia was shaken by a video recording that came to light during the Milosevic trial. It shows members of an Interior Ministry death squad known as the Scorpions executing six handcuffed Bosniak men and boys from Srebrenica, where more than 8,000 Bosniak men and boys were massacred in 1995, allegedly on orders from Mladic.

The video [source], shot by one of the participants, was shown on Serbian television and the government, for the first time, acknowledged that Serbs were guilty of atrocities. The killers, who were identifiable on the video, have been arrested and are being tried in Serbian courts.

Ristic, from the center for war crimes against Serbs, said the trials were appropriate, but insisted that the Scorpion tape has not shaken his faith in Mladic’s innocence.

“I was not there (Srebrenica), so I can’t tell you whether he ordered anything or not. But after our clear-cut victory, it was not in Serbia’s interest to do something like that,” he said.

Milan Protic, a historian who served as Yugoslavia’s first ambassador to the United States in the post-Milosevic era, said that only “stupid minds” in Serbia continued to view Mladic as a hero, but that it also is wrong for the EU and the United States to hold all of Serbia hostage to his arrest.

“He is an obsolete symbol, this dirty little Serbian commander from Bosnia,” he said, “but the West is using him to complicate all kinds of things for Serbia.

Srebrenica Genocide Blog – Facts vs. Genocide Denial
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HAGUE JUDGES INTRODUCE IMPUNITY FOR CRIMES

Stand Off at the Security Council

Prosecutor hits back at judges for changing rules and slams Serbia, Russia and UNMIK over cooperation. [ read background here ]

By Janet Anderson and Michael Farquhar in The Hague (TU No 456, 9-Jun-06)

New battle lines have been drawn between the judges and the prosecutor in The Hague over methods to speed up trials as the deadline for completion of the tribunal’s work looms.

In separate addresses to the United Nations Security Council this week, the president of the tribunal Fausto Pocar and the Chief Prosecutor Carla Del Ponte, agreed on the need for urgent measures to enable the tribunal to substantially streamline judicial processes.

But amendments to the tribunal’s rules adopted at a plenary session of the judges just a few days before the report to the UN was due, which give them the right to direct the prosecution to select which counts of the indictment should be taken to trial, have drawn direct fire from the prosecutor.

Del Ponte vehemently challenged the new rule as a challenge to her independent authority [read here]. She said it would be “impossible to arbitrarily cut and slice cases”, and suggested it would lead to “impunity for certain crimes”.

She said she would interpret the changes as “purely advisory”.

The proposed rule change has been welcomed by some legal experts. Michael Scharf, former state department attorney and professor of law in Ohio, has consistently criticised the prosecution for including too many charges against individuals.

“[The tribunal] is not a truth commission,” he told IWPR, saying it shouldn’t be trying to provide a “detailed account of everything” that occurred.

The prosecution should only file indictments for the most serious crimes where the evidence is strongest, he says.

“These ‘exemplary charges’ will provide ‘snapshots of evil’…sufficient for the objectives of international justice,” said Scharf.

Edgar Chen, who observed trials in The Hague for the Coalition for International Justice, points out that judges already have considerable powers. They can confirm an indictment; dismiss counts after evidence has been presented, and decide on the basis of relevance what evidence they need to hear – all of which, he says, “bolster judicial economy”.

But the prosecution, he says, have to keep other audiences in mind too when drawing up indictments – “the victims, [and those] in the region who do want to see accountability for a vast array of alleged crimes”.

Anton Nikiforov, spokesperson for the prosecutor, explained to IWPR that the prosecution did not expect that the new amendments would affect two big multi-accused indictments in the high profile cases about to begin in the next few weeks.

They include nine high-ranking Bosnian Serb officers charged with genocide in connection with the 1995 massacre of around 8,000 boys and men at Srebrenica, and a case against seven high-ranking Serb politicians and officers in relation to mass deportations and killings in Kosovo in 1999, both of which will begin in July.

But he pointed out that if cuts were requested in smaller cases, for instance that senior Croat generals, which are still to be scheduled, for example, the court could appear “unbalanced” to observers. The counts are often “complex and interlinked” he explained, which would make is very difficult to disentangle them.

He also pointed out that it may be perceived as unfair to those who have already been processed by the court.

Nikiforov said the only recourse available to the prosecutor would be to appeal. But, he acknowledged, the appeals chamber is run by Judge Pocar, who announced the rule change.

Apart from restricting the counts on the indictment, the judges have also decided on a number of steps to control proceedings at the tribunal more tightly, “shifting away from party-driven process to one that is closely managed by the judges of the tribunal”, as Pocar explained.

The innovations mainly focus on the work of pre-trial judges, and how they should write strict timetables, require the prosecution and defence to provide timely pre-trial briefs, disclose witnesses and make “greater use of the power to sanction” either side.

Chen says that the measures Pocar is discussing, and the various suggestions made by Del Ponte in her speech all point to the “daunting crush of the ‘completion strategy’ [that all organs of the court feel] in their work”.

Del Ponte also used her report and speech to the Security Council to attack the cooperation offered to her office by Serbia, Republika Srpska, Russia and the United Nations Mission in Kosovo, UNMIK.

As usual, her criticism of Belgrade focussed on efforts to detain the indicted former head of the Bosnian Serb army, Ratko Mladic. She complained that rather than arresting Mladic, the Serbian authorities had wasted time trying to get him to surrender voluntarily. And while a series of operations targeting his support network earlier this year might have succeeded in producing a lot of column inches, she added, they lacked the discretion needed to acquire information that could have led to his arrest.

In addition, Del Ponte voiced suspicion that inconsistencies in reports submitted to her office by the Serbian authorities were a sign that the information in them had been “doctored for political reasons”.

Del Ponte admitted that she had seen no “credible information” about the location of Radovan Karadzic, the former president of Republika Srpska, also indicted on charges of genocide, “for more than a year now”.

But she pointed her finger at the RS, saying that “part of his network …remains there”, and she complained about a decrease in cooperation.

Following the successful referendum on independence in Montenegro, the prosecutor said that there was a risk that “problems will arise” with cooperation with the tribunal because state union organs are responsible for that area.

Some of Del Ponte’s most scathing criticism, however, was reserved for UNMIK, who she accused in her report of deliberately obstructing access to evidence. “My office has nowadays more difficulties to access documents belonging to UNMIK than in any other place in the former Yugoslavia,” she told the Security Council.

Her report also noted that UNMIK had been negligent in its handling of witnesses on a number of occasions, leading to a loss of confidence in the ability of the system to protect them. And it complained of a perception in Kosovo – “justified by numerous facts” – that The Hague’s highest profile Kosovo Albanian indictee, Ramush Haradinaj, enjoys UNMIK’s support.

Haradinaj was prime minister of Kosovo prior to his transfer to the Hague tribunal last year. UNMIK has praised his work in that past and backed his successful bid to return to Kosovo and re-enter politics whilst awaiting trial on war crimes charges.

In a press release issued the day after Del Ponte’s speech before the Security Council, UNMIK declared her accusations “unfounded”. The statement said that judges at the tribunal had rejected allegations of inappropriate behaviour by the UN administration in Kosovo in relation to Haradinaj.

Towards the end of her speech in New York, Del Ponte also announced plans to press the Security Council to grant her staff the power to arrest fugitives themselves. Given the lack of political will to arrest Mladic and the tribunal’s other top fugitive, former Bosnian Serb president Radovan Karadzic, she said, “I do not see any other way for the [tribunal] to fulfil its mandate and satisfy the legitimate expectations the victims placed into the United Nations.”

She reiterated that plans to close the Hague tribunal within a few years cannot go ahead unless the two men have faced trial.

Following Del Ponte’s speech, Russian delegate Vitaly Churkin dismissed her criticism of his government and described her talk of securing the power to arrest fugitives herself as “fantasies”.

Janet Anderson is IWPR’s programme manager in The Hague and Michael Farquhar is an IWPR reporter in London.

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SREBRENICA MASSACRE ORCHESTRATORS MUST BE CAUGHT

STATEMENT BY TRIBUNAL’S PROSECUTOR CARLA DEL PONTE TO THE SECURITY COUNCIL 7 JUNE 2006

Points of Interest (blog editor’s picks):

1) The Prosecution has proven an international armed conflict in Bosnia and Herzegovina no less than five times. This proves that there was no civil war in Bosnia-Herzegovina as previously thought, but a full blown international attack on Bosnia-Herzegovina by neighbouring Serbia.
2) An amendment to the Rules was adopted that would allow a Trial Chamber to direct the Prosecutor to cut counts in an indictment, which Mrs. Del Ponte justly refuses to do.
3) Serbia has the main responsibility to locate, arrest and transfer all six fugitives. The co-operation provided by Serbia to the ICTY has been and remains very difficult and frustrating.
4) Nobody is searching actively for primary orchestrators of Srebrenica massacre: Radovan Karadzic and Ratko Mladic. [Also see: $5,000,000 Reward posted by the US Justice Department for the capture of Radovan Karadzic and/or Ratko Mladic]

Mrs. President,
Excellencies,

Thank you very much for giving me the opportunity to provide you with my assessment of the progress made in the completion strategy and to highlight the problems we continue to face. A written assessment was delivered already, and I intend to focus on the main issues.

A number of steps were taken internally to increase the efficiency of the Tribunal, while maintaining the highest standards expected from an international court created by the United Nations.

In this regard, I have proposed to join cases with a similar crime base. I have filed four motions for that purpose, and three were accepted by the Chambers. One trial with six accused has already begun. Later this year, a consolidated trial with nine accused charged with crimes committed in Srebrenica will start, as well as another one with six leading political and military figures indicted for crimes committed by Serbian forces in Kosovo.

My second initiative has been to propose the transfer of cases involving mid-and lower-level perpetrators. This undertaking was met with strong opposition from some victims’ groups. However, my assessment of the local judiciaries is that they are now capable of trying such cases. Beginning in September 2004, I have therefore filed 13 motions requesting the transfer of cases to the domestic jurisdictions of the former Yugoslavia. There is no other case at the ICTY that could be transferred to the region, as, according to the criteria set by the Council, they all concern the most senior leaders responsible for the most serious crimes.

Thirdly, I have been working with the Judges in taking all possible measures to ensure that the Tribunal’s own process is as efficient as possible. I have put forward packages of reforms that, if implemented, would significantly accelerate the pre-trial and trial proceedings. Given the seriousness of the cases at the ICTY, it is essential to improve urgently pre-trial management, so that issues are narrowed before the trial starts so that the trial can focus on truly contested matters. Decisions on key issues must be made long before the beginning of the trial. For instance, it is important that a decision be rendered very soon on a motion regarding the disclosure of materials in electronic or hard copy that I filed in the Šešelj case over two years ago.

I have also proposed that a much more dynamic approach be taken on adjudicated facts. Such facts have been proven in previous trials, and the Chambers have the power to decide that they must not be proven again in a given trial. The instrument of the adjudicated facts is therefore a key tool to reduce the scope of the trials. For instance, the Prosecution has proven an international armed conflict in Bosnia and Herzegovina no less than five times, wasting months and months on proving the same facts, sometimes with the same witnesses, in case after case. We have to prove it again, for the sixth time, in the on-going Prlić et al. trial.

I have also taken the lead in promoting the efficient use of time at trial. For example, in the Prlić et al. case, the Prosecution has put forward a 10 point plan to streamline the trial, within the time limit set by the President of the Trial Chamber, for the Prosecution and Defence respectively to present their cases and cross-examination. This plan was accepted by the Trial Chamber and its implementation does have serious positive effects.

During the Judges’ Plenary on 30 May, an amendment to the Rules was unfortunately adopted that would allow a Trial Chamber to direct the Prosecutor to cut counts in an indictment. In view of the checks and balances contained in the Statute, and particularly the duties and responsibilities of the Prosecutor under the Statute, such directions by the Chambers can only be interpreted as purely advisory in nature. Only the Security Council has the power to modify the ICTY Statute, which guarantees the independence of the Prosecutor and assigns to her the responsibility of determining which charges to bring in a prosecution.

I am continuously reviewing our cases and I will not hesitate to cut counts when there are clear judicial reasons for that. It is however impossible to arbitrarily cut and slice cases, which are complex by their very nature. My mandate, given by the Security Council, is to prosecute the most senior officials, that is to say persons who were most often far removed from the crime scenes and whose responsibility can only be established by examining a number of different crimes, often in different geographical areas. Removing one or several counts artificially may seriously undermine the prosecution case. Eventually it leads to impunity for certain crimes and does not do justice to the victims, who are already puzzled by the Completion Strategy.

Allow me to use an example: Srebrenica. Which counts should I eliminate? Those referring to the killings of over 7,000 men and boys? (see: preliminary list of 8,106 Srebrenica massacre victims) Or those relating to the forcible transfer of 25,000 women, children and elderly people? This would mean that I am only presenting half the picture of the serious crimes that took place in Srebrenica. How can I justify presenting only half the picture of the brutal crimes that took place in the former Yugoslavia? These are choices that, as a Prosecutor representing also the victims, I am not ready to make. This would introduce unacceptable disparity in the treatment of the persons accused by the Tribunal. There must be no justice à la carte.

I will again urge the other organs of the Tribunal to focus on the proposals made by the Judges’s Working Group and by my Office. These measures, if fully implemented, would have a serious impact on the length of the proceedings and put the Tribunal closer to realizing the Completion Strategy.

Speeding up the proceedings is a top priority of my Office. Obtaining the arrest and transfer of the remaining indictees at large is another one. It has been said a thousand times: it is inconceivable that the ICTY closes its doors with Radovan Karadzic and Ratko Mladić at large. I want to stress again before the Council that impunity for these two most serious architects of the crimes committed in Bosnia and Herzegovina, both accused of genocide, would represent a terrible blow not only to the success or failure of the Tribunal, but to the future of international justice as a whole.

Serbia has the main responsibility to locate, arrest and transfer all six fugitives. According to my information, Mladić, Tolimir, Hadžić and Župljanin are in Serbia. Furthermore, there are established leads connecting Serbia to Karadžić, whose location is unknown, and to Ðjorđevic, who is still believed to be in Russia. The fact that Mladić has been an active officer of the Army of Yugoslavia till May 2002, one year and a half after the fall of Milosević and seven years after he was indicted, adds to the responsibility of Belgrade for its failure to deliver the former General.

Over the past twelve months, the Serbian authorities have repeatedly promised that Mladić would be delivered soon. I was told regularly by Serbian officials that the circle was closing down around him. At the end of April, in view of Serbia’s failure to achieve the promised results, I re-assessed the whole operation and found out that it had been suffering grave defects. During 2005, there was no real attempt to locate and arrest Mladić. Time was wasted in trying to encourage him to surrender voluntarily. Since the beginning of this year, it seems that more was undertaken. In particular, his support network was targeted, and several of his supporters arrested. These actions were sometimes spectacular, they fed many news articles, but they lacked the necessary discretion that would have allowed to acquire information leading to Mladić.

The most blatant dysfunction is the total lack of co-operation between the military and the civilian authorities. The inconsistencies I could identify in the various reports provided to me came as another surprise and forced me to suspect that some of the information contained in these reports had been doctored for political reasons. In our co-operation with Belgrade, we have not managed to achieve so far the level of trust and transparency that we had achieved with other countries. I will keep on engaging the Serbian Government in the months to come, trying to establish more confidence and a better communication.

As to the other aspects of the co-operation with Belgrade, a mission was sent in the second half of May to test the new arrangement agreed upon with the Government of Serbia and Montenegro regarding access to archives. This has been a long standing problem. The first accounts I received from my staff are encouraging.

To sum up, the co-operation provided by Serbia to the ICTY has been and remains very difficult and frustrating. There is serious political and administrative resistance within the system, and a strong political will is needed to overcome those obstacles. On the basis of the facts in my possession, I cannot be convinced that Serbia is ready to arrest Mladić. For a number of reasons, the authorities may still prefer to force him to surrender voluntarily.

Republika Srpska within Bosnia and Herzegovina also has to increase substantially its efforts to locate and arrest fugitives. Whereas it is unclear whether Radovan Karadžić still resides at times or travels through Republika Srpska, it is certain that part of his network and of his family remains there. In the reporting period, the cooperation provided by Republika Srpska to my office has rather decreased, which is due to political reasons and the reshuffling of personnel in the police. Now that a new team is in place, the search for Karadžić must intensify rapidly.

My office has maintained a positive working relationship with Montenegro for over a year, and I expect this co-operation to continue at full speed. Part of Karadžić’s family is living in Montenegro, and he can count on numerous supporters there.

I am particularly disappointed about the lack of movement on another important fugitive, Vlastimir Ðjorđevic. The investigation carried out by the Russian authorities, as they told us, has failed to produce results. This will have negative implications on the completion strategy, because, if Ðjorđevic is not surrendered within the next weeks, it will be impossible to try him with his six co-accused. Resources will therefore have to be wasted in a separate trial. Ðjorđevic is accused of very serious crimes committed by Serbian forces in Kosovo. The long and unexplained delays in the transfer of Zelenović, who was detained in Russia since August 2005, do not allow for optimism in the future of the ICTY’s co-operation with the Russian Federation.

It is also worrying that a sister organisation of the Tribunal, the UN Mission in Kosovo, refuses to co-operate fully with the Tribunal. My office has nowadays more difficulties to access documents belonging to UNMIK than in any other place in the former Yugoslavia. Furthermore, the UNMIK leadership is encouraging a climate which deters witnesses from talking to my investigators when it comes to the Albanian perpetrators. Very recently, there have been some indications that the UNMIK is willing to take a more constructive attitude in its relations with my office.

Mrs. President,

I explained at length in my last report why Karadžić and Mladić are still at large more than 10 years after they were first indicted. My assessment remains the same today. Serbia has to do much more to arrest and transfer Ratko Mladić. The arrest of Radovan Karadžić is a shared responsibility of Serbia, Republika Srpska, NATO and EUFOR. It is pathetic that today, nobody is searching actively for Karadžić. The planned downsizing of EUFOR will further aggravate the situation. Since no one else seems to have the political will to locate and arrest Karadzic and Mladić, I will have no choice but to seek from the Council the powers to arrest fugitives where ever they are and to allocate to my Office the necessary resources for this. Ultimately, I do not see any other way for the ICTY to fulfil its mandate and satisfy the legitimate expectations the victims placed into the United Nations.

Srebrenica Genocide Blog – Facts vs. Genocide Denial
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BAD MAN OF THE MILLENIUM

Slobodan Miloševic – Bad man of the millenium

Author: Marko Attila Hoare

Comment on Milosevic following his death in prison, written for the Open Democracy website by the author of How Bosnia Armed

Slobodan Milošević represented the last gasp of a discredited type of politics, but he was also the harbinger of a new one – not just in the former Communist East, but also in the West. His policies ensured that Communist dictatorship would not go peacefully to its grave in Yugoslavia, as it had in most of Eastern Europe, but would instead create a spectacular conflagration, claiming the lives of tens of thousands of innocent victims before burning itself out in total defeat. Yet despite this record, or perhaps in some sense because of it, Milošević’s cause became the cause of all those across Europe and the world – conservatives of the left and conservatives of the right – for whom the idea of progress under liberal capitalism was and remains anathema.

Milošević deliberately promoted the break-up of Yugoslavia and the independence of Croatia and Slovenia; he championed free-market reforms; he struggled to build good relations with the West, even supporting the US in the 1991 Gulf conflict; he waged wars against sovereign independent states without a mandate from the UN Security Council; and he initially endorsed the activities of the International Criminal Tribunal for the former Yugoslavia (ICTY). The Western alliance was very slow to confront him, treating him more as a partner and collaborator than as an enemy, right up until the late 1990s. As an anti-imperialist, Milošević was no more successful, and was considerably less sincere, than he was as a Great Serbian nationalist. Yet it is not the real historical figure, rather the myth of Milošević, that has made him a hero to so many of those opposed to the ‘new world order’: he was the conservative’s Communist; the Communist’s champion of free-market reform; the peacenik’s warmonger; the UN-worshipper’s defier of international law. In sum, a paradoxical poster-boy for an anti-modern coalition comprised of opposites.

The real Milošević – as opposed to the myth created by his Western admirers – cannot be understood without reference to the long-term Serbian and Yugoslav historical context. Milošević was the leader of a secessionist Serbian rebellion against a Titoist Yugoslavia that had kept Serbia in check. Josip Broz Tito’s Communist-led Partisans, who fought against the Nazi occupiers of Yugoslavia, founded their federal Yugoslav state on the ruins of the Third Reich – but also on the ruins of Great Serbian nationalism. The Partisans were essentially a west-Yugoslav movement whose strongest wing was in Croatia: its leader, Tito, was a Croat, and the Communist Party of Croatia mobilised more Partisans than any other section of the Yugoslav Communist organisation. The most important source of Partisan manpower was the Serbs of Croatia and Bosnia – but they fought under the banners of a free Croatia and a free Bosnia within a Yugoslav union of equals, and against the goal of a Great Serbia that was being championed by the Partisans’ anti-Communist rivals – the royalist Chetniks. The latter’s bastion was in Serbia. It was only with massive Soviet assistance that the Partisans were able to conquer Serbia and defeat the Chetniks, and in doing so, the Partisans cut Serbia down to size: countries considered by many Serbs to be ‘Serb lands’ – Bosnia, Macedonia and Montenegro – were established as republics in their own right, while Vojvodina and Kosovo were made autonomous entities within Serbia. From the 1960s, Tito’s regime moved Yugoslavia further from the centralist constitutional model that Serb politicians had traditionally favoured, toward a semi-confederacy in which not just the republics, but the autonomous provinces of Vojvodina and Kosovo, increasingly behaved like sovereign entities outside the control of Belgrade. It was this ‘anti-Serb’ constitutional order that Milošević set out to destroy.

Milošević was a creature of the Titoist Communist system who rebelled against the system. He pursued an independent Serbian political line that was at variance with the wishes of other Yugoslavs, tearing apart the fragile Titoist system that depended upon consensus and compromise for its functioning; he undermined and destroyed federal institutions; and from mid-1990 he pursued the policy of expelling Croatia and Slovenia from Yugoslavia. The new Serbian constitution promulgated by Milošević in 1990s declared the ‘independence’ of Serbia and its right to pursue its own international relations; in March 1991, Milošević effectively seceded from Yugoslavia, declaring Serbia would no longer respect the authority of the Yugoslav Presidency; in May 1991, Milošević decapitated Yugoslavia, by blocking the election of Croatia’s Stipe Mesic as Yugoslav president, thereby leaving the country without a functioning executive. Yet all this was done in the name of defending ‘Yugoslavia’. In attempting to carve out new Serbian borders, Milošević attempted to merge Titoism with Great Serbian nationalism, by establishing a ‘new Yugoslavia’ that would be composed entirely of Serb and Montenegrin entities as defined by Milošević’s ‘socialist’ ideologue Mihailo Marković in October 1991, this meant Serbia, Montenegro and an additional Serb unit made up of ‘Serb’ lands conquered from Croatia and Bosnia – Titoist and Yugoslav in form but Great Serbian in content.

In seeking to reconcile these irreconcilables, Milošević fell between two stools, for the young people of Serbia were unwilling to fight and die for such confused goals, in a ‘Yugoslav’ army that was neither genuinely Yugoslav, nor pursuing real, open Serb-national goals. Wracked with desertion, the military forces of Serbia and the Yugoslav People’s Army were rescued from defeat in Croatia only by Western diplomacy – not for the last time, the ‘anti-imperialist’ side was saved by the ‘imperialists’. In Bosnia, Milošević’s Bosnian Serb satellites pursued an equally contradictory goal – seeking to conquer Bosnia and secede from it at the same time. The Serb genocide of Bosnian Muslims and Croats provoked a powerful Bosnian resistance, while the dirty character of the war waged by the Serbs, and the confusion over their goals and their borders, again ensured a Serb defeat.

Despite the readiness of John Major’s British Conservative government, François Mitterrand’s French Socialist regime and Bill Clinton’s vacillating Democratic administration, to collude in Milošević’s aggression and genocide, the world-wide revulsion caused by the latter eventually mobilised a powerful global counter-current uniting principled opinion from across the political spectrum. The Srebrenica massacre marked the turning point in Western policy, which gradually shifted. NATO attacked Bosnian Serb forces in 1995; Clinton then rescued the Bosnian Serbs from defeat at the hands of the Bosnians and Croatians, forcing the latter to abandon their victorious advance, and followed this up with the ambiguous Dayton Accord, which recognised the Bosnian Serb statelet created by genocide, but nevertheless buried forever the possibility of a Great Serbia. Milošević was Clinton’s ally at Dayton, even pledging Serb cooperation with the ICTY. But the tide had turned, and when Milošević attempted a third round of ethnic-cleansing, in Kosovo in the late 1990s, the Western alliance partially redeemed its earlier disgrace, and this time took resolute action to stop him.

The movement in opposition to the Kosovo War in the West marked the scraping of the bottom of the ‘anti-imperialist’ barrel, with its selective opposition to war (it did not oppose Milošević’s), selective support for national sovereignty (it did not uphold Bosnia’s or Kosovo’s) and selective respect for UN resolutions (it did not support those directed against Milošević). This was a precursor to the equally unprincipled stance of part of the ‘anti-war’ movement over Iraq – involving support for Arab dictators, Iraqi Sunni sectarian murderers and Islamic fundamentalist fascists. Milošević – the phoney socialist, phoney anti-imperialist and phoney champion of national sovereignty – remains an appropriate hero to all those for whom opposition to ‘Bush and Blair’ is so absolute as to override all principles – such as democracy, anti-fascism, human rights, gender equality and national self-determination – that might once have been unquestionable for all politically honourable people. Milošević personifies the link between the Communist dictatorships of the twentieth century and the anti-American left of the twenty-first.

The author is a senior research fellow at Kingston University. His How Bosnia Armed was published by Saqi in 2004, while Genocide and Resistance in Hitler’s Bosnia: the Partisans and the Chetniks will be published by OUP in September 2006.

Srebrenica Genocide Blog – Facts vs. Genocide Denial
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LESSONS FROM THE MILOSEVIC TRIAL

LESSONS FROM THE MILOSEVIC TRIAL

By Gwynn Mac Carrick

The long-running trial of Slobodan Milosevic in The Hague, complete with courtroom drama, demonstrated the many pitfalls entailed in trying deposed leaders in a court of law. In the wake of the which ended with his death before judgment prosecution of the Serbian leader, it is timely to decide what lessons, if any, can be drawn from this trial, which might have application for the proceedings against former Iraqi president Saddam Hussein, in Baghdad, and other high profile defendants in the future.

Inevitably, former world leaders indicted for international crimes will not go quietly. These chief defendants drag out their cases, disparage witnesses, interject, follow nuisances of exchange, mock the court, evade and prevaricate.

It is of primary importance then, that the prosecution has a coherent prosecutorial strategy. What Milosevic’s trial has taught us is that the simpler the strategy the better. That is, by reducing the complexity of the indictment and limiting the objectives of the trial to achievable goals, the Office of the Prosecutor enhances the prospect of a final judicial outcome in the lifetime of the defendant.

Second, if the court and the international community at large are to separate facts from theatrics and prevent the court from being used as a venue for staging extrinsic and irrelevant political issues, there is a need to put in place a strategy for reducing the melodramatics of the courtroom proceedings.

Milosevic, 64, was charged with 66 counts of genocide, war crimes and crimes against humanity spanning the 1991-1995 war in Croatia, the 1992-95 war in Bosnia and the 1998-99 Serb crackdown in Kosovo. He denied the charges and died in custody before a verdict was delivered. Notwithstanding the voluminous amount of evidence presented, compiled in hundreds of thousands of documents and exhibits in his case, and the adducing of countless hours of witness testimony over the course of a four-year period, the net result was nil.

This was avoidable, given that the trial chamber judges, who became frustrated with the pace of the proceedings, urged the prosecutors to trim the indictment list to a manageable number of the strongest claims. However the prosecutors refused, on the basis that shortening the indictments would result in disrespecting the victims and ignore realities. Instead the prosecution offered an extensive amount of exhibits and an archive of eyewitness accounts, photographs and videos relating to the slaughter of an estimated 8,000 [Bosniak] Muslim men and boys in July 1995 in the Bosnian town of Srebrenica and the relentless shelling of Sarajevo.

The Milosevic trial dragged on for over four years, with testimony from hundreds of witnesses and thousands of documents admitted into evidence, in an effort to present a comprehensive account of the historical events, rather than simply focusing on the elements of the crime.

This is where the international criminal prosecutions of major defendants are getting it wrong. Trials have become an attempt to reconstruct history rather that a strictly legal process. Prosecutions are approached from the viewpoint that the testimony of witnesses is a cathartic exercise, which marks the vindication of victims and the start of national healing. This is too ambitious. The court should be reserved for testing the strictly legal and factual issues.

In reality Milosevic’s trial dealt with a mega-case, which involved atrocities committed over a decade in Croatia, Bosnia and Kosovo. The court proceedings concluded at Milosevic’s death, with no judgment. The former Yugoslav president had eluded the criminal process.

The length and complexity of the Milosevic trial helped convince Iraqi prosecutors that they needed to concentrate on a few key events rather than attempt to cover the full range of alleged atrocities during Hussein’s 24-year rule. To avoid this evidentiary overload, the Iraqi tribunal decided to conduct a dozen mini-trials, the first case focusing on Saddam’s 1982 retaliatory attack on the town of Dujail and the torture and murder of 143 of its inhabitants.

Michael Schraf an eminent international lawyer who helped train the five judges for the Saddam trial suggests, “One of the lessons of the Milosevic trial is that war crimes need to be streamlined and efficient”. He states, “The old adage ‘justice delayed is justice denied’ proved to be accurate in the case of Milosevic”.

“The Dujail case is serving as a test cast, a judicial laboratory, for the judges to get used to the novel rules and procedures,” says Scharf. “Most importantly, they have learned how to balance the rights of the defendants and at the same time maintain control of the courtroom in the face of defence attempts to disrupt the proceedings.”

The Milosevic case was used as both an example and an illustration of what not to do during the Iraqi judges’ preparation. A major departure from the Milosevic trial is that Saddam is being tried on individual and specific charges rather than a broad case of crimes against humanity. This is a big lesson to draw. Schraf explains that in the Iraqi court each case stands on its own, at the end of which, there will be a judgment. The judgments of these mini- trials constitute “snapshots of evil”.

According to the daily Le Monde, the high court in Baghdad announced on April 4 that after the initial trial, a more significant trial would be held in which Saddam Hussein and six other defendants would be tried for crimes committed during the 1987 and 1988 anti-Kurd campaign in Al-Anfal, resulting in 100,000 to 200,000 victims. In this case, Saddam is indicted along with Ali Hassan Al-Majid, (known as “Chemical Ali”), on charges of genocide and crimes against humanity, for the destruction of thousands of villages, the displacement of their residents and the gassing of the village of Halabja in March 1988, which resulted in 8,000 victims.

The hearing of these “snapshot of evil” indictments could last for years as new charges, including genocide are laid. The Iraqi authorities are keen for closure following former Yugoslav president Slobodan Milosevic’s death before he faced a verdict on war crimes and also conscious not to “bite off more than they can chew”.

Attempting to try the ousted leader for genocide against Kurds will almost certainly mean that these criminal matters will take years to resolve. However, by drafting a series of disciplined indictments that focus on specific events the trials are self-contained.

Some observers have cautioned against haste. The former chief of the Iraqi Crimes against Humanity Unit, Tom Parker, says that in the context of Iraq it is more important for due process to be seen to be done than it is for a speedy trial. Parker favours procedural fairness over timeliness, on the basis that Saddam’s trial should constitute “an important building block in the construction of a credible Iraqi judicial system”. He added that, “a rushed trial could signal nothing had changed and justice in Iraq was still biddable to political expediency”.

Also speaking of the Iraqi court, Theodor Meron said it would have to guarantee the rights of its famous defendant to appear credible to the public, stating, “Any court dealing with atrocities has to pay particular respect to due process. There can be no cutting corners.”

It is a universal principle that any criminal jurisdiction, be it national or international, must extend to an accused person a system of justice that is both regular and fair. While not for a moment suggesting that there should be any diminution of the rights afforded the accused in major trials of this nature, it is important that the prosecutors do not hoist themselves on their own petard.

A trial of an individual cannot at the same time attempt to satisfy other external agenda, for instance, attempting to be a national catharsis, a medium for national healing, a comprehensive history lesson and a panacea for a failed justice system.

Unnecessarily broadening the trial objectives beyond the displacement of the burden of proof by the satisfaction of requisite elements sets the bar for the prosecution at an impossibly high level, thereby playing into the hands of former dictators, who are masters at manipulation and astutely aware of the theatrical effect of behaving badly.

If the prosecution stakes out the righteous high ground, then the defence will inevitably seek to show that the prosecutor represents an interested party rather than a mere officer of the court. The contest is then about personalities, as opposed to the merits of the matter. If the trial simply deals with the merits in a value neutral manner, then it will avoid the trial becoming a showdown between morality versus hypocrisy.

Some commentators have suggested that one of the greatest obstacles for prosecutors in the trials of former dictators is the sheer force of their personality on trial. Milosevic, for instance, acted in his own defence, with a staff of Serbian lawyers and researchers collecting material and conducting investigations on his behalf. He also had two court-appointed attorneys who intervened in procedural matters. This permitted him to have counsel, but also be disruptive himself.

Many critics and courtroom observers say Milosevic was the main reason his trial lasted so long. Early in the trial Milosevic was known for courtroom speeches and temperamental outbursts, following every nuance of exchange and frequently interjecting complaints or questions, even correcting courtroom interpreters. Milosevic disparaged the tribunal in court, threatened and insulted witnesses and tried to make the trial about the US and British military action against Serbia.

He logged a succession of sick days on doctors’ recommendation, resulting in the court sessions being reduced to three days a week to reduce his stress and hypertension.

The lessons of Milosevic’s prolonged trial were uppermost in the minds of those establishing the criminal tribunal for Iraq, now underway in Baghdad. Methods for keeping the trial short, fair and under control were the primary concerns.

Keeping order in these politically charged cases have proved a big issue. In an effort to circumvent this problem of self-representation, last August the Iraqi National Assembly enacted revised rules for the tribunal. Under the rules, Saddam had to be represented by legal counsel, in order to prevent him from using the court as a political forum to attack the US and the new Iraqi Government.

In keeping with Iraqi legal tradition, however, the judges have allowed Saddam to question witnesses. This has given Saddam a platform to disparage and prevaricate. So far, according to observers, the trial of Saddam Hussein has been characterised by chaos, with the bench often struggling to maintain order. The defence lawyers walked out, prompting their dismissal and an order by the court to continue the trial with court-appointed public defenders. In protest, Saddam and his co-defendants have refused to return to court, thereby requiring the court to make a case to the public, clearly explaining the ruling.

From the initial proceedings it is evident that the Iraqi tribunal will have teething issues, but whether any lessons have been learned from The Hague experience remains to be seen.
Undoubtedly, the trials of leaders such as Slobodan Milosevic and Saddam Hussein will be followed shortly by the trial of other similarly situated deposed leaders. This week the UN Security Council may ask the Netherlands to host the special court for Sierra Leone, established four years ago in Freetown, so that it can try its most important defendant, former Liberian president Charles Taylor, who was incarcerated on March 29. In this case it would appear that the relocation of Taylor to The Hague is a prosecutorial strategy aimed at security and to avoid the pitfalls of in situ prosecution.

Similarly, the lessons learned from the trial of Milosevic have application elsewhere. For instance, if the international community is to avoid the same outcome in Cambodia as the Milosevic trial, it will need to ensure the prompt establishment of a trial chamber to begin hearing matters as a matter of priority. Presently the Cambodian Government is delaying setting up the extraordinary chambers to try ex-Khmer Rouge leaders, adopting a strategy that increases the likelihood of these leaders dying before they come to trial.

It is imperative that we learn the lessons. Trying former world leaders is always going to test any criminal system, but the Milosevic precedent tells us that the prosecution can get smarter and more efficient about how they conduct proceedings, primarily by simplifying their prosecutorial strategy. Ambitious drafting is counter-productive and zealous posturing with respect to what these trials will achieve on a grand scale, will be met predictably by distain and counterclaim from the defence.

If we have learned anything from Milosevic’s trial it is “keep it simple” and “keep it free from posturing” by both parties to the proceedings. This way the international criminal process can ensure the pronouncement of timely and disinterested judgment from legal institutions which are, to the extent possible, freed from their political context.

Srebrenica Genocide Blog – Facts vs. Genocide Denial
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THE MILOSEVIC ACCOUNT

The Milosevic Account

Author: Eric Gordy

If no governing authority judges Milosevic’s life and rule, those who depended on his power will dream of his vindication and their return to power, writes the author of ‘The Culture of Power in Serbia: nationalism and the destruction of alternatives’ (1999) on the Open Democracy website

Slobodan Milosevic was a challenge to justice from the beginning, but he was always good for criminals. In death as in life.

He passed away later than many people would have hoped, but too early to allow the tribunal to reach a verdict on the charges filed against him, for gross violations of international humanitarian law. Inevitably, the conditions of his passing damage the tribunal: why did the prosecutors supplement their charges with historical claims that no legal institution could hope to adjudicate? Why was he permitted to conduct an inept self-defence that dragged out over several years? How was he given access to debilitating drugs which counteracted his prescribed treatment and, intentionally or not, facilitated his death?

It is a pattern familiar to people who observed him in power and out over the years. Beginning by saying one thing and doing another, he built a record of distancing himself from his own actions, from the actions of people he abetted, from the results of his engagement, and when he had nothing left, from himself. When he claimed in his final letter to have been defending his country, he was continuing a long habit of transferring responsibility for his own behaviour to other people and to the whole society.

But no regime can sustain itself without accomplices, and nobody is willing to become an accomplice unless somebody benefits. Milosevic may have demolished the Serbian middle class and put the working class out of work, but he has left one lasting legacy: a new criminal class that owes its position entirely to him. To see who they are, pay attention to who shows up for his funeral in Pozarevac on 18 March. The vast majority of Serbs will skip it.

A memorial was published in the newspapers Blic and Vecernje novosti on 14 March, signed by thirty-four of Milosevic’s fellow detainees in the International Criminal Tribunal for the Former Yugoslavia (ICTY) holding facility in Scheveningen. They saluted the memory of their “fellow fighter” in The Hague. Shortly thereafter, detainees began making demands of the prison authorities. They want the United Nations Security Council to appoint a special commission to investigate their living conditions.

Milan Martic, the former low-ranking police officer who became president of the “Republic of Serbian Krajina” and sent missiles into the centre of Zagreb before fleeing ahead of the people who were soon to made refugees, lamented: “I am sick. I demand to be seen by a doctor and for my diet to be managed.” These are people who have a good deal in common even if they do not share the same nationality – above all, they have in common the expectation that their comfort will be looked after by people for whom they care not a bit.

And what of the people who saw to their comfort? The daily paper Blic ran a feature on 14 March with reactions from people whose lives were touched by Milosevic.

Ivica Lazovic, who was shot in the head by a Milosevic supporter during a catastrophic attempt to disrupt the massive antiregime demonstrations in 1996, contrasts his fate with the life of the man who died in custody: “I am at peace with honest people and with God, and as always, an enemy of malicious people, bandits and thieves. I sleep peacefully.”

Dusan Vukovic, who demonstratively refused to accept from Milosevic a posthumous military medal for his son who was killed in the Kosovo conflict, notes that Milosevic “died very pleasantly considering all he did.”

Now will come a controversy, well justified, regarding the kind of medical attention Milosevic received and the source of the rifampicin that may have brought on his fatal heart attack. It will be impossible for the managers of the ICTY detention facility to escape some blame for his fate – even in the best case, they are at least guilty of negligence. The inevitable scandal will, once again, draw attention away from the character of Milosevic’s rule.

Nobody will compare the medical attention he received to the care shown to Ivan Stambolic, Slavko Ćuruvija, the people kidnapped off a train and massacred in Strpci, the people kidnapped off a bus and massacred in Sjeverin, the people shot with their hands bound behind their backs in Srebrenica, the people whose bodies were dumped into the river near Tekija, the people whose bodies were moved to a secret mass grave in Batajnica, and whose bodies were incinerated at Mackatica.

The sleep of reason creates monsters. If no governing authority offers a serious account of the balance of Milosevic’s life, the people whose social prominence depended on his rule will. The criminals he cultivated may well return to power, the members of his family may return to public life, and his memory may begin to be venerated, both by people whose lives he destroyed and by outsiders who imagine him to have been a warrior against imperialism. If he were alive, Milosevic would appreciate the irony.

Eric Gordy is associate professor of sociology at Clark University, Massachusetts. He is the author of The Culture of Power in Serbia: nationalism and the destruction of alternatives, Penn State University Press, 1999. This comment was posted on the Open Democracy website at http://www.opendemocracy.net on 17 March 2006.

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NASER ORIC TRIAL ENDS – FAIRNESS QUESTIONED

NASER ORIC TRIAL ENDS – WAS IT FAIR?

As the trial of Srebrenica wartime commander Naser Oric ended this week after 18 months, presiding judge Carmel Agius told a court in The Hague that she expects a judgement by the end of June.

“This has not been an easy case,” said Judge Agius.

Mr. Oric faces charges relating to his alleged responsibility for looting and wanton destruction of Serb property in villages around Srebrenica in 1992 and 1993, and for murders and abuse of 12 Serb prisoners held in the town’s prison during the same period.

In the six days set aside for closing arguments, prosecutors called for an 18-year sentence. The defence said he should be acquitted on all counts.

The prosecution has tried to prove that Mr. Oric controlled fighters said to have been personally responsible for the crimes in question. The defence has dismissed such claims, saying that at the time their client was a commander “only on paper”.

Mr. Oric also took the opportunity to briefly address the court at the end of closing arguments, saying, “I trust your honours, and I trust you will reach the right decision.”

Fairness of Mr. Oric’s Trial Questioned

There have been allegations that the tribunal has been biased against Mr. Oric.

A number of witnesses testified that Oric was aware of his impending indictment and told the commanders of SFOR in the Tuzla that he would surrender peacefully, but SFOR chose to arrest him forcefully in spite of this.

On July, 25 2003 the tribunal denied his appeal for a provisional release, even though it was clear he was no flight risk.

Many of the 52 witnesses that the prosecution called were members of the Bosnian Serb Army who participated in the seige and massacre of 8,100 Srebrenica Bosniaks and as such are untrustworthy.

The prosecution has also been accused of providing forged documents which three expert witnesess failed to authenticate, and has also been warned but not sancioned for witholding exculpatory evidence.

The judges at one point attempted to reduce the time that defence witnesses were allowed to testify, until an appeals chamber overturned this decision.

There is also outrage at the 18 year sentence that the prosecution has asked for.

Mr Oric is charged with failing to prevent and punish his subordinates for allegedlly killing 12 people.

Drazen Erdemovic, was a Serb soldier serving in Srebrenica and although he confessed to killing 70 people during the Srebrenica massacre he only received a 5 year sentance.

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